Madras High Court
Prashanthini vs R.Prabhu on 23 September, 2021
C.M.A. Nos.2100, 2621 & 3993 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A.Nos.2621 & 3993 of 2019 & 2100 of 2021
C.M.P.Nos.22563 of 2019 & 11566 of 2021
C.M.A.No.2621 of 2019
1.Prashanthini
2.Minor.Sharvin,
Son of Arun Mohan,
(Minor Rep. by Mother / Natural Guardian
Prashanthini,
3.Chinnaponnu ... Appellants
Vs.
1.R.Prabhu
2.Sathappan
3.United India Insurance Company Ltd.,
Christo Building Bank Road,
Ooty, Nilgiris District - 643 001.
4.Anthony Xavier
5.Managing Director,
Karnataka State Transport Corporation Ltd.,
Central Office, K.H.Rapd, Shanthi Nagar,
Bangalore, Karnataka Stage.
6.The New India Assurance Company Ltd.,
Divisional Office, IX-672100,
4th Floor, Tower Block, Unity Building J.C.Road,
Bangalore, Karnataka State - 560 002. ... Respondents
https://www.mhc.tn.gov.in/judis/
C.M.A. Nos.2100, 2621 & 3993 of 2019
Prayer in all Appeals : Civil Miscellaneous Appeal filed under Section 173
of Motor Vehicle Act, 1988 against the judgment and decree, dated 14.12.2018
made in M.C.O.P.No.370 of 2014, on the file of the Motor Accidents Claims
Tribunal, Subordinate Judge, Sathyamangalam.
For Appellants : Mr.Ma.P.Thangavel
For Respondents : No appearance for R1and R4
Mr.C.Kasirajan for R2
Mr.S.Arunkumar for R3
Mr.T.Thiyagarajan for R5
Mr.R.Shivakumar for R6
C.M.A.No.3993 of 2019
United India Insurance Company Ltd.,
Christo Building Bank Road,
Ooty, Nilgiris District - 643 001. ... Appellant
Vs.
1.Prashanthini
2.Minor.Sharvin,
Son of Arun Mohan,
3.Chinnaponnu
4.R.Prabhu
5.Sathappan
6.Anthony Xavier
7.Managing Director,
Karnataka State Transport Corporation Ltd.,
Central Office, K.H.Rapd, Shanthi Nagar,
Bangalore, Karnataka Stage.
https://www.mhc.tn.gov.in/judis/
C.M.A. Nos.2100, 2621 & 3993 of 2019
8.The New India Assurance Company Ltd.,
Divisional Office, IX-672100,
4th Floor, Tower Block, Unity Building J.C.Road,
Bangalore, Karnataka State - 560 002. ... Respondents
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.Ma.P.Thangavel for R1 to R3
Mr.C.Kasirajan for R5
No appearance for R4, R6
Mr.T.Thiyagarajan for R7
Mr.R.Sivakumar for R8
C.M.A.No.2100 of 2021
Sathappan ... Appellant
Vs.
1.Prashanthini
2.Minor.Sharvin,
Son of Arun Mohan,
(Minor Rep. by Mother / Natural Guardian
Prashanthini,
3.Chinnaponnu
4.R.Prabhu
5. United India Insurance Company Ltd.,
Christo Building Bank Road,
Ooty, Nilgiris District - 643 001.
6.Anthony Xavier
7.Managing Director,
Karnataka State Transport Corporation Ltd.,
Central Office, K.H.Rapd, Shanthi Nagar,
Bangalore, Karnataka Stage.
8.The New India Assurance Company Ltd.,
Divisional Office, IX-672100,
4th Floor, Tower Block, Unity Building J.C.Road,
Bangalore, Karnataka State - 560 002. ... Respondents
https://www.mhc.tn.gov.in/judis/
C.M.A. Nos.2100, 2621 & 3993 of 2019
For Appellant : Mr.C.Kasirajan
For Respondents : Mr.Ma.P.Thangavel for R1 to R3
No appearance for R4, R6
Mr.S.Arunkumar for R5
Mr.T.Thiyagarajan for R7
Mr.R.Sivakumar for R8
COMMON JUDGMENT
Judgment of the Court was delivered by K.KALYANASUNDARAM, J.
These Appeals arises out of the Judgment and Award passed by the
Motor Accidents Claims Tribunal, Sub Court, Sathyamangalam, Erode District in
M.C.O.P.No.370 of 2014.
2. The facts in brief are that the wife, minor child and mother of the
deceased Arun Mohan, who died in a motor vehicle accident on 31.08.2014
filed the claim petition, seeking compensation of Rs.3 Crores. The case of the
claimants is that on the fateful day, the deceased Arun Mohan was travelling as
a passenger in KSRTC bus bearing Registration No.KA-09-F-4668 from Ooty to
Bangalore. When the bus was proceeding near Karyamanthu curve, the driver
of the bus drove it in a rash and negligent manner. At the same time, the lorry
bearing registration No.TMD-8511, which was coming from opposite direction
with high speed dashed against the bus, in which, the deceased sustained fatal
injuries. Immediately, he was carried to Government Hospital, Ooty, from
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C.M.A. Nos.2100, 2621 & 3993 of 2019
where, he was referred to CMC, Coimbatore. But, unfortunately, he died on
the way to the Hospital.
3. The claimants have further stated that the deceased was 33 years old
on the date of accident. He has studied M.E. and was working as a Software
Engineer in A.O.N. I.T. Company, at Bangalore and his annual salary was
Rs.8,50,000/-. He was also paid yearly bonus of Rs.1,00,000/-. The second
respondent was the owner of the lorry, while the third respondent was his
insurer. The bus belongs to the fifth respondent and it was insured with the
sixth respondent. It is the case of the claimants that since both the drivers of
the vehicles are negligent, their owners as well as their insurers are jointly
liable to pay compensation.
4. The claim petition was resisted by the respondents by filing counter
statement. It was the contention of the owner of the lorry that the accident
occurred due to the negligence of the driver of the bus, which no permit to ply
on the roads at the alleged time and place of accident. The Managing Director
of the bus filed a counter alleging that the lorry driver was responsible for the
accident and also contended that there are violations of policy conditions and
the vehicle was not driven by the driver, who was not having valid
driving license.
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C.M.A. Nos.2100, 2621 & 3993 of 2019
5. Before the Tribunal, the parties have let in oral and documentary
evidence. Upon consideration of the evidence adduced by the parties, the
Tribunal held that the driver of the lorry was negligent and awarded
compensation of Rs.1,64,40,974/-. Assailing the said findings, the Insurance
Company has come up with an Appeal C.M.A.No.3993 of 2019.
6. Being dissatisfied with the quantum, the claimants have preferred
Appeal No.2621 of 2019. The Tribunal having found that the lorry was driven
by its cleaner, who was not holding valid driving license, directed the insurer
to satisfy the award and recover from the owner. Challenging the said finding
and also quantum of compensation, the owner of the lorry has preferred
C.M.A.No.2100 of 2021.
7. Since the appeals are interlinked and arise out of the Judgment and
Award passed in M.C.O.P.No.370 of 2014, all the three Appeals are heard
together and disposed of by this common judgment.
8. In order to prove the negligence, the claimants examined P.W.2, an
eyewitness to the incident and also produced Ex.P1-First Information Report,
Exs.P3 and P4-Reports of the Motor Vehicle Inspector of both the vehicles,
Ex.P5-Sketch, Ex.P6-Observation Mahazar and Ex.P7-Charge Sheet. The cleaner
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C.M.A. Nos.2100, 2621 & 3993 of 2019
of the lorry gave evidence as R.W.1. The owner of the lorry was examined as
R.W.2 and its driver was examined as R.W.3. R.W.4 is the individual
eyewitness. The driver of the bus was gave evidence as R.W.6. Ex.P1-F.I.R.
was registered based on the statement of one Radhika. She deposed that she
travelled in the bus as one of the passengers and the accident happened due
to the negligence of the driver of the lorry. As aforementioned in the claim
petition, it has been stated that the accident occurred due to the negligence
of the drivers of both the vehicles. P.W.2 deposed that the accident happened
due to the negligence of the driver of the bus. Though in the F.I.R. (Ex.P1), the
name of the driver was not mentioned, but subsequently, during investigation,
it was found that at the relevant point of time, the vehicle was driven by the
cleaner, who did not have a valid driving license. Hence, charge sheet (Ex.P7)
was filed against him. In order to get over the liability, R.W.1-Prabhu has given
evidence stating that the vehicle was driven by the driver Ravikuttan. The said
Ravikuttan was also gave evidence to the same effect, when he was examined
as R.W.3. R.W.2 and R.W.4 have stated that the vehicle was driven by the
driver Ravikuttan. The Tribunal decided the issue on negligence mainly on the
basis that the criminal case was registered against the driver of the lorry and
Exs.P3 and P4 show that there was heavy damage to the lorry in the front side
and damage was caused to the middle of the bus. Sketch also shows that the
accident had taken place in the middle of the road. It is an admitted fact that
the criminal case filed against the said cleaner Prabu is still pending and no
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C.M.A. Nos.2100, 2621 & 3993 of 2019
finding has been given by the criminal Court. The learned Judge has taken
note of the fact that no complaint was given against the driver of the bus and
even if there is any complaint, it was not pursued thereafter.
9. The learned counsels appearing for the owner as well as insurer of
the lorry vehemently contended that the finding on negligence requires
interference of this Court. It is their contention that admittedly, the lorry was
proceeding from downwards to upwards in a hill area and the accident had
taken place in a curve. R.W.6 has also admitted in his evidence that the
vehicle coming from upwards to downwards has to stop to give way to the
vehicle coming from downwards to upwards and the sketch shows the accident
had taken place in the middle of the road and hence, the entire negligence
cannot be fixed on the driver of the lorry.
10. Per contra the learned counsel appearing for the owner of the bus
and its insurer Mr.Shivakumar would urge that it has been categorically proved
before the Tribunal that the lorry was driven by the person, who was not
having valid license and it was driven in a rash and negligent manner. The
learned counsel has drawn the attention of this Court to the reports of the
Motor Vehicle Inspector (Exs.P3 and P4) to contend that unless the lorry was
driven in a high speed, the damage to the bus would not have happened. The
learned counsel made submissions in support of the conclusion reached by the
Tribunal.
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C.M.A. Nos.2100, 2621 & 3993 of 2019
11. In the matter on hand, as aforementioned, both the parties have
given evidence to substantiate their case. It is true that the lorry hit in the
middle portion of the bus, which caused damage to the vehicle. It must be
pointed out that the lorry was proceeding from downwards to upwards and the
accident had taken place in the turning of the road. From Ex.P5 site map, it is
clearly seen that in the middle of the road, the accident had taken place. It is
common knowledge that a heavy vehicle, which goes upwards in a hill area, it
cannot be driven in a high speed. As mentioned above, this fact is clearly
admitted by R.W.6, the driver of the bus. . If R.W.6 had stopped the vehicle on
seeing the lorry, this accident could have been avoided. So, we are of the
opinion that the entire negligence fixed on the driver of the lorry cannot be
sustained. We are of the view that both the vehicles are equally responsible
for the accident and the negligence is fixed at 50:50.
12. Mr.C.Kasirajan, learned counsel appearing for the appellant in
C.M.A.No.2100 of 2021 /owner of the lorry vehemently contended that there is
no evidence to show that the lorry involved in the accident was driven by the
cleaner viz., Prabhu. According to the learned counsel, even in the F.I.R. his
name is not mentioned. But, merely a charge sheet has been filed against him,
it cannot be held that he drove the vehicle, without valid driving license.
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C.M.A. Nos.2100, 2621 & 3993 of 2019
13. We are unable to agree with the submission of the learned counsel
for the reason that the First Information Report was registered on the basis of
the complaint given by one of the passengers of the bus, who may not know
the name of the driver of the vehicle. That apart, when the vehicle was taken
to the Motor Vehicle Inspector, the name of driver of the vehicle was shown as
Prabhu and that he was having only license to ply light motor vehicle. Further,
admittedly, neither the said Ravikuttan nor Prabhu lodged any complaint
against the driver of the bus. Even though the driver R.W.3 has stated that he
gave a complaint against the driver of the bus, no material was produced to
substantiate the same. Hence, the finding of the Tribunal that the vehicle was
driven by the said Prabhu is confirmed and the order of pay and recovery is
also affirmed.
14. Insofar as quantum is concerned, the wife of the deceased gave
evidence as P.W.1 and she has stated that her deceased husband was working
as a Senior Software Engineer in I.T. Company and his monthly salary was
Rs.62,149/-. Further, he was paid Rs.98,438/- as bonus per every year. P.W.3,
Executive Director in HR Department in A.O.N. Consultancy Service Company
gave evidence that the deceased joined in the Company on 30.08.2012 and he
worked till his death. He marked salary certificate (Ex.P18) and also stated
that the deceased was paid Rs.71,532/- in the month of April 2014. He further
deposed that the deceased's performance was very good. In addition, the
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C.M.A. Nos.2100, 2621 & 3993 of 2019
claimants produced Exs.P11 to P15 to prove his educational qualification.
Ex.P.18 is the salary certificate, Ex.P33 is the bank statement. The Tribunal has
taken the income of the deceased at Rs.71,532/- to arrive at loss of income,
but failed to deduct Rs.2,900/-, which was paid for his personal expenses. So,
the income of the deceased is taken as Rs.68,632/-. It is not in dispute that
the deceased received bonus of Rs.98,438/-, which has been credited in his
bank account.
15. At this juncture, the learned counsel appearing for the claimants
Mr.Ma.P.Thangavelu by placing reliance on the decisions of the Hon'ble
Supreme Court in the case of Sureshchandra Bagmal Doshi Vs. New India
Assurance Co. Ltd., [2018 (1) TNMAC 75 (SC)] and Hem Raj Vs. Oriental
Insurance Co. Ltd., and others [2017 (2) TN MAC 758 (SC)] argued that the
claimants are entitled for 100% additional future prospectus. It is apposite to
mention in Pranay Sethi case, the Constitutional Bench of Apex Court framed
guidelines for additions towards future prospectus and only in exceptional
cases higher slab can be applied. In this regard, the Tribunal following the
decision in the case of Sarala Verma and others vs. Delhi Transport
Corporation [2009 (6) SCC 121], has added 50% towards future prospectus,
hence, we find no reason to interfere with the said decision. Therefore, the
loss of income of the deceased comes to Rs.13,83,033/- per year. [Rs.68,632/-
x 12 + 98,438/- (Bonus) + 50%].
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C.M.A. Nos.2100, 2621 & 3993 of 2019
16. The Tribunal has not deducted any amount towards Income Tax,
hence, Rs.2,39,909/- is deducted. Further, 1/3 of the income is to be deducted
towards personal and living expenses. It is an admitted fact that the
deceased died at the age of 33 years and as per the decision of Sarala Verma,
proper multiplier would be '16', but the Tribunal has applied multiplier '17' and
hence, this Court fixes the multiplier as '16'. Therefore, the loss of income is
assessed as Rs.1,23,43,322/- [68,632 x 12 + 98,438 (Bonus) + 50% -
Rs.2,39,909 (I.T.) x 16 - 1/3]. In addition, this Court is inclined to modify
the award passed by the Tribunal under the conventional heads.
S. Heads under which Amount awarded Amount awarded
No. amounts are awarded by by the Tribunal in by this Court in
the Tribunal Rs. Rs.
1. Loss of income 1,62,65,974/- 1,21,93,322/-
2. Loss of love and affection 1,50,000/- -
3. Loss of Consortium - 1,20,000/-
4. Loss of Estate - 15,000/-
5. Funeral and Transport 25,000/- 15,000/-
expenses
Total 1,64,40,974/- 1,23,43,322/-
The award amount is reduced to Rs.1,23,43,322/- from Rs.1,64,40,974/-. In
total, the claimants are entitled to Rs.1,23,43,322/- along with interest at
the rate of 7.5% per annum from the date of claim petition till the date of
realization.
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C.M.A. Nos.2100, 2621 & 3993 of 2019
17. In view of the above finding, both the owners of the vehicles
and their insurers are liable to pay the amount equally. They are directed to
deposit their respective share, less already deposited, if any, within a period
of sixteen weeks from the date of receipt of a copy of this Judgment. On
such deposit, the major claimants are permitted to withdraw their share of
the modified award amount along with proportionate interest and costs, as per
the ratio of apportionment fixed by the Tribunal, less the amount already
withdrawn, if any. The share of the minor claimant shall be deposited in any
one of the nationalized banks in a fixed deposit till she attains majority. The
interest accruing on the minor deposit is permitted to be withdrawn by the
mother of the minor claimant once in three months.
18. For the foregoing reasons, the civil miscellaneous appeals in
C.M.A.No.3993 of 2019 and C.M.A.No.2100 of 2021 are partly allowed. The
Appeal filed by the claimants C.M.A.No.2621 of 2019 is dismissed. However,
there shall be no order as to costs. Consequently, connected miscellaneous
petitions are closed.
[M.K.K.S, J] [V.S.G., J]
23.09.2021
Index : Yes / No
Speaking order: Yes/No
rns
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C.M.A. Nos.2100, 2621 & 3993 of 2019
To
1. The Motor Accidents Claims Tribunal, Subordinate Judge,
Sathyamangalam.
2. The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A. Nos.2100, 2621 & 3993 of 2019
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
C.M.A.Nos.2621 & 3993 of 2019 & 2100 of 2021
C.M.P.Nos.22563 of 2019 & 11566 of 2021
23.09.2021
https://www.mhc.tn.gov.in/judis/
